United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING APPLICATION TO PROCEED IN
FORMA PAUPERIS AND DISMISSING ACTION
H. CLELAND UNITED STATES DISTRICT JUDGE
April 17, 2015, pro se Plaintiff Marita Turner filed
what she styled as a “Complaint for Writ of
Mandamus” seeking the issuance of various subpoenas for
records allegedly kept by Defendants, who are officers of the
Huron Valley Complex where Plaintiff is incarcerated. (Dkt. #
1.) Now before the court is Plaintiff's application to
proceed without prepaying fees or costs under 28 U.S.C.
§ 1915(a)(2). For the reasons that follow, the court
will grant Plaintiff's application and summarily dismiss
her complaint under 28 U.S.C. § 1915(e)(2)(B).
not explicitly stated by Plaintiff, her request is apparently
related to prior litigation before this court. See Turner
v. Callington, Case No. 13-12744, 2014 WL 2764172 (E.D.
Mich. April 18, 2014). In Callington, Plaintiff
alleged that various prison officials, including Danitra
Callington, a named Defendant in the instant action, violated
her Eighth Amendment rights by tampering with her food and
subsequently denying her necessary medical treatment.
(Id.) Plaintiff sought one hundred million dollars
in damages. (Id.) This court adopted a Report and
Recommendation prepared by then-Magistrate Judge Laurie J.
Michelson granting a motion to dismiss filed by two
Defendants, stating “Plaintiff may move to amend her
complaint by May 23, 2014, to replead her Eighth Amendment
contamination-of-food claim, with allegations that explain
how individual defendants were personally involved[.]”
(Id.) Plaintiff failed to do so - though she did
file an amended complaint that simply stated the elements of
an Eighth Amendment claim without alleging supporting facts
on May 1 - and this court adopted a subsequent Report and
Recommendation issued by Magistrate Judge Patricia Morris
granting the remaining defendants' motions and dismissing
the case in its entirety with prejudice. Turner v.
Callington, 2014 WL 2764172 (E.D. Mich. June 18, 2014).
court granted Plaintiff's application to proceed on
appeal without prepaying fees or costs under 28 U.S.C. §
1915(a)(3) in an October 29, 2014 order. (Case No. 13-12774,
Dkt. # 52.) The Sixth Circuit denied Plaintiff's appeal
in an opinion entered June 17, 2015. (Case No. 13-12774, Dkt.
# 53.) In its opinion, the Sixth Circuit noted that Plaintiff
asked the Circuit Court to order the release of the same
records sought in the instant complaint, which the Circuit
Court denied because “this evidence has not been first
presented to the district court for consideration.”
Plaintiff's appeal was pending, on April 17, 2015, she
filed the instant “Complaint for Writ of
Mandamus” without prepaying the requisite filing fee.
(Dkt. # 1.) Apparently interpreting Plaintiff's filing as
a new matter, the Clerk of the Court applied a new case
number, and this court ordered Plaintiff to correct the
failure to submit the filing fee on August 14, 2015. (Dkt. #
3.) On September 8, 2015, Plaintiff submitted the application
to proceed in forma pauperis now before the court.
(Dkt. # 4.) Eighteen days later, on September 25, 2015,
Plaintiff filed a one-page request for reconsideration in the
earlier case and attached the amended complaint she had filed
on May 1, 2014. (Case No. 13-12774, Dkt. # 56.)
the Prison Litigation Reform Act of 1996, the court must
sua sponte dismiss any portion of an in forma
pauperis complaint that is (i) frivolous or malicious,
(ii) fails to state a claim upon which relief may be granted,
or (iii) seeks monetary relief from a defendant who is immune
from such relief. 28 U.S.C. § 1915(e)(2)(B). A complaint
is “frivolous” if it lacks an arguable basis in
law or fact. Neitzke v. Williams, 490 U.S. 319, 325
(1989); see also Denton v. Hernandez, 504 U.S. 25,
32 (1992). To avoid dismissal for failure to state a claim, a
complaint must provide sufficient facts to “state a
claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). “The plausibility standard is not akin to a
‘probability requirement, ' but it asks for more
than a sheer possibility that defendant has acted
unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Twombly, 550 U.S. at 556).
court is mindful of the duty to construe pro se
civil rights complaints liberally. See Haines v.
Kerner, 404 U.S. 519, 520-21 (1972). It is not
immediately clear to the court whether Plaintiff intended her
April 17, 2015 filing to be a separate complaint initiating a
new matter or to be a motion in the earlier, dismissed case.
Either way, the court must deny Plaintiff's request.
construed as a motion in the earlier litigation,
Plaintiff's claim was moot before it was filed. The court
dismissed the Plaintiff's case in its entirety, with
prejudice, on June 18, 2014 - nearly nine months to the day
before Plaintiff's filing. Callington, 2014 WL
2764172. Plaintiff's motion for reconsideration, filed
even later, is also untimely and provides no basis for
relief. See LR 7.1(h) (providing fourteen days from
entry of judgment or order to file motion for
construed as a new matter, Plaintiff's complaint must be
dismissed for a variety of reasons. At the outset,
notwithstanding Plaintiff's numerous citations to
Michigan statutes and the Michigan Court Rules, federal
district courts are unequivocally barred from issuing writs
of mandamus by Federal Rule of Civil Procedure 81(b).
Further, Plaintiff's complaint provides no factual
grounds on which this court may issue the requested subpoenas
or otherwise order the production of documents. See
Fed. R. Civ. P. 26(b)(1); Fed.R.Civ.P. 45(a)(1)(A)(ii).
Plaintiff's complaint asserts no claim for damages or
declaratory or injunctive relief. Even if it did,
Plaintiff's claims would likely be precluded by the
doctrine of res judicata. See Bittinger v.
Tecumseh Pros. Co., 123 F.3d 877, 880 (6th Cir. 2010).
Nor does it allege that Plaintiff has a legal entitlement to
the records - it states only that the records “will
substantiate her claims[.]” (Dkt. # 1, Pg. Id.
3.) But Plaintiff's prior allegations regarding her
treatment while in custody are not presently before this
court. Plaintiff's complaint lacks an arguable basis in
law and fails to state a claim upon which relief may be
granted. As a result, it must be dismissed. 28 U.S.C. §
Plaintiff has now filed at least three proceedings in
forma pauperis while incarcerated and all have been
dismissed as either frivolous or failing to state a claim
upon which relief may be granted. See Talley v.
Novak, Case No. 13-12382, 2013 WL 378823 (E.D. Mich.
July 19, 2013) (filed under alias and summarily dismissed for
failure to state a claim) (Edmunds, J.); Turner v.
Inge, Case No. 13-12743 (E.D. Mich. May 8, 2014)
(summarily dismissing form complaint with no factual
allegations) (Luddington, J.). Under the “three
strikes” provision of the Prison Litigation Reform Act
of 1996, Plaintiff may no longer be granted leave to bring a
civil action in forma pauperis unless she is
“under imminent danger of serious physical
injury.” 28 U.S.C. § 1915(g). The “three
strikes” provision would also bar the instant
application if Plaintiff's filing is construed as a new
matter. Accordingly, IT IS ORDERED that
Plaintiff's application to proceed in forma
pauperis (Dkt. # 4) is GRANTED.
FURTHER ORDERED that Plaintiff's complaint is DISMISSED
pursuant to 28 U.S.C. § 1915(e)(2) for frivolity and
failure to state a claim upon which relief may be granted.
 While this court dismissed
Plaintiff's prior action under Federal Rule of Civil
Procedure 12(b)(6), not 28 U.S.C. § 1915(a)(2)(B)(2), it
still counts as a “strike” for the purposes of
§ 1915(g). See Pointer ...